Do fencing covenants run with the land?

The fencing covenant in this case was a promise to erect and maintain a fence. As the covenant required positive action by one party, it is known as a positive covenant. However, under Common Law and Equity positive covenants do not run with the land.

What do you need to know about restrictive covenants?

Restrictive covenants are rules preventing certain things from being done on the land, such as keeping animals or using the property for business purposes. Sometimes a covenant can be worded negatively but be positive or vice versa, for example “not to allow the fence to fall into disrepair” is really a positive obligation to maintain the fence.

When does a covenant not to build a house become obsolete?

As an example, a covenant not to build any structure so as to obstruct the covenantee’s view which was imposed when the land surrounding the benefiting land was open countryside may be considered obsolete if a housing estate has since sprung up around the land or; 2.

Do you have a boundary fence that you own?

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When did covenants become enforceable in common law?

The Judicature Acts of the late nineteenth century basically merged the two systems but there are still some differences. In respect of covenants, for them to be enforceable, both the benefit and burden must run in common law or both must run in equity.

Is the obligation to maintain boundary fences a covenant?

It was held that there was clear intention that the original parties to the conveyance wanted the obligation to last after the servient land had changed hands. Even though the clause contained the word “covenant”, it would be contrary to the parties’ intentions if the clause was classed as a covenant.

Is there a covenant to erect and maintain a fence?

A standard clause for insertion into a transfer of freehold property, where the transferee covenants to erect and maintain a fence. To access this resource and thousands more, register for a free, no-obligation trial of Practical Law. © 2021 Thomson Reuters.

Can a covenant be enforced against the original owner?

However it should be noted that future owners of the land which has the benefit of a positive covenant can enforce the covenant against the original owner of the land that has the burden of the covenant. A restrictive covenant limits or prevents the use of land in a specified way to the benefit of other land.